legislation as a critical tool in addressing social change · pdf file ·...

Author: R Ozoemena

LEGISLATION AS A CRITICAL TOOL IN ADDRESSING SOCIAL

CHANGE IN SOUTH AFRICA: LESSONS FROM MAYELANE v

NGWENYAMA

http://dx.doi.org/10.4314/pelj.v18i4.07

2015 VOLUME 18 No 4

eISSN 1727-3781

http://dx.doi.org/10.4314/pelj.v18i4.07

RN OZOEMENA PER / PELJ 2015(18)4

970

LEGISLATION AS A CRITICAL TOOL IN ADDRESSING SOCIAL CHANGE IN

SOUTH AFRICA: LESSONS FROM MAYELANE v NGWENYAMA

RN Ozoemena

1 Introduction

Since 1996 the Constitution1 has been the key driver of social change in South Africa

in addressing the multifarious imbalances of the past. As South Africa is a

constitutional democracy, one of the avenues for promoting the values of equality,

dignity and freedom2 enshrined in the constitution is through the enactment of

legislation. In terms of the Constitution, section 211(3) provides for the "application

of customary law by the courts where it is applicable, subject to the constitution and

any other legislation that specifically deals with customary law". One of the pieces of

legislation enacted in this regard is the Recognition of Customary Marriages Act

(hereinafter "the Recognition Act").3 Since the Recognition Act came into force in

November 2000, it has brought both legal and social changes to the institution of

marriage, particularly for African people. For instance, prior to 1994 customary

marriages were not recognised by the South African state as legally valid, but they are

now so recognised. Furthermore, the Recognition Act sought to ensure that the parties

to a customary marriage enjoy equality of status within the marriage.4 Although the

Recognition Act was intended to bring some form of certainty to the application of

customary law, determining the content of the "living law" remains a challenge.5

The transformative project of creating an egalitarian society based on human dignity

and freedom has been driven in the main by the Constitution as well as by legislation

Rita N Ozoemena. LLB LLM (Rhodes), LLD (Pretoria). Post-Doctoral Research Fellow, South African

Institute for Advanced Constitutional, Human Rights, Public and International Law (SAIFAC), a

Centre of the University of Johannesburg. Email: [email protected]. I am hugely indebted to David Bilchitz for his earlier comments and I am very grateful to the two anonymous referees for their

insightful comments. 1 Constitution of the Republic of South Africa, 1996 (the Constitution). 2 Section 1(a) of the Constitution provide for the values on which the sovereign democratic state is

founded, such as human dignity, the advancement of equality, human rights and freedoms. 3 Recognition of Customary Marriages Act 120 of 1998 (the Recognition Act). 4 Mqeke 1999 Obiter 52; Dlamini 1999 Obiter 14. 5 Himonga and Bosch 2000 SALJ 306-341.


971

such as the Recognition Act. That project presupposes the existence of a culture of

rights in advancing social change. In many ways, the Constitution has made a tangible

impact on the lives of many, as noted in cases such as Alexkor Ltd v Richtersveld

Community6 and Bhe v Magistrate, Khayelitsha.7. In other ways, the specific legislation

relating to customary law seems to have had the opposite effect and to have had

unintended consequences for the majority of the people. In the Mayelane v

Ngweyama8 ("Mayelane") case, one of the issues concerned the application of the

provisions of the Recognition Act, particularly concerning the requirements for the

validity of customary marriages in the context of polygyny. The provisions in the

Recognition Act intended to protect the parties in a polygynous marriage failed to take

into account the realities of South African family relationships resulting from job

migration to the cities by the husbands of many women married in terms of customary

law. The unintended consequences of such migration as found in the Mayelane case

and the application of the Recognition Act in the context of polygynous marriages, are

that a lot of women are left unprotected, with a far-reaching effect on them and their

children. This further highlighted the difficulty of ascertaining the true content of

Xitsonga customary law.

In a constitutional democracy such as ours, how should living law be developed and

what are the mechanisms that are best placed to do so? The purpose of this article is

to draw attention to the inefficacy of legislation particularly in the context of African

customary practices, whose nature is fluid and changes constantly with the socio-

economic conditions of the people. Although the changing nature of living customary

law may present challenges in ascertaining its content, change is intrinsic to this law.

Hence the need for case by case development. This article argues that the notion of

living law presupposes change, and that the use of legislation in certain areas of

customary law may result in unintended consequences that will adversely affect the

people it seeks to benefit. It is submitted that the Constitutional Court needs to engage

6 Alexkor Ltd v Richtersveld Community 2004 5 SA 460 (CC). 7 Bhe v Magistrate, Khayelitsha 2005 1 SA 580 (CC). 8 Mayelane v Ngwenyama 2013 4 SA 415 (CC) (hereafter Mayelane).


972

more with social norms in the community in order to adequately address the nuances

that form part of the evolving nature of customary law.

2 Facts

The applicant, Mayelane, married Mr Hlengani Dyson Moyana in 1984 at the time when

customary marriages were referred to as "customary unions".9 Ngwenyama alleges

that she also married Mr Moyana on 26 January 2008, after the coming into force of

the Recognition Act. Mr Moyana died a little more than a year later, on the 28 February

2009. The Recognition Act converted "customary unions" that were valid and existed

at the time of the commencement of the Act into customary marriages recognised by

law. After the death of Mr Moyana, both Mayelane and Ngwenyama sought to register

their marriages in terms of section 4 of the Recognition Act. Each disputed the other's

marriage, and Mayelane then applied to the High Court to have her customary

marriage declared valid and that of Ngwenyama to be declared invalid on the basis

that she as the first wife had not consented to the marriage. The High Court granted

both orders.

The matter went on appeal to the Supreme Court of Appeal (SCA), which confirmed

the validity of Mayelane's marriage but overturned the order of invalidity regarding

the marriage of Ngwenyama. The SCA also found both marriages to be valid under

customary law. The matter before the Constitutional Court was the appeal against the

decision of the SCA in which the applicant, Mayelane, alleged that in terms of Xitsonga

customary law the consent of the first wife is required before any other subsequent

customary marriage can be entered into by her husband and that she did not consent

to such a marriage. In terms of section 3(1) of the Recognition Act dealing with the

requirements for the validity of the marriage, consent relates only to the parties to the

marriage, and nowhere does the Act refer to the consent of the first wife. In

determining the matter, the Constitutional Court decided to engage with the question

of whether the consent of an existing wife in a customary marriage is required for the

validity of her husband's subsequent polygynous customary marriages. They

9 Bakker and Heaton 2012 TSAR 586-593.


973

embarked on this enquiry by looking in the first place at the provisions in the

Recognition Act and, in the second place, to the Xitsonga customary law to which the

parties subscribe.

3 The judgement

The main judgment of the Constitutional Court in the Mayelane case dealt with two

related issues: the consent of an existing wife to the validity of her husband's

subsequent customary marriage and the content of the applicable customary rule,

including how it should be ascertained. The Court considered the consent issue by

having regard to the values and rights enshrined in the Constitution, such as equality10

and human dignity.11 The common view is that African customs and practices infringe

on the equality rights of women, denying them equal status in marriage, inheritance

and succession. The Constitutional Court in a number of cases has sought to provide

much needed redress to women where inequalities have been found to exist, as in

Bhe (where the customary practice of male primogeniture was declared

unconstitutional for violating the right to equality), Shilubana (the succession of a

woman as Hosi-chief - was confirmed, thereby protecting right to gender equality)

and Gumede (where the equal rights of women in marriage was protected).12 In

dealing with the consent issue in Mayelane, the Court first of all considered the

recognition and application of customary law under the Constitution in general and, in

particular, in relation to the Recognition Act. The Court utilised the tripartite scheme

of statutory, constitutional and living law and, based on its interpretation of the

applicable legislation, it sought to develop the Xitsonga customary law with a view to

bringing it in line with the ethos of the Constitution.

The Court began by recognising the importance of customary law as an independent

source of law that must be accorded its rightful place in the broad scheme of the

South African legal system. The Court also recognised that the Recognition Act is

premised on the notion that customary law that can be harmonised with the values of

10 Section 9 of the Constitution. 11 Section 10 of the Constitution. 12 Shilubana v Nwamitwa 2009 2 SA 66 (CC); Gumede v President of Republic of South Africa 2009

3 SA 152 (CC).


974

dignity and equality in the Constitution. So, in determining whether the consent of an

existing wife in a subsisting customary marriage is necessary, the Court looked to

relevant provisions in the Recognition Act.13 Section 3(1) of the Recognition Act deals

with the requirements for the validity of a customary marriage by stipulating that (a)

the parties to the marriage must give their consent and (b) the marriage must be

"negotiated and entered into or celebrated in accordance with customary law". It was,

however, placed on affidavit by the brother to the deceased that none of his siblings

went to negotiate lobolo and there was no ceremony in relation to marriage between

his brother and the respondent. Furthermore, the respondent could not adduce

evidence to the existence of any marriage, and so the Court held that the respondent

could not prove the existence of a marriage between herself and the deceased

according to customary law. The Court further considered section 7(6) of the

Recognition Act, which specifically provides that a husband must approach the court

for an order regarding the matrimonial regime. The Court held that this provision could

not be interpreted to determine consent of the first wife. The main judgment

considered it necessary to require further evidence from witnesses to determine what

the "living law" of the Xitsonga people was. From the evidence gathered from a wide

range of witnesses and experts, it was clear to the Court that:

(a) Polygynous marriages are not the norm in Xitsonga society, however, VaTsonga men have a choice to enter into further customary marriages;

(b) VaTsonga men when they do decide, must inform their first wife of the intention to take another wife;

(c) It is expected that the first wife agree and assist in the process leading to the further marriage;

(d) If there are disagreements regarding the first wife's consent, the families are brought in to persuade and where it fails, divorce may occur.14

The Court deduced that the living law of the Xitsonga requires that the first wife be

informed of her husband's impending subsequent marriage. The wide range of

evidence gathered was considered by the majority as a means of ascertaining as well

as noting the nuances in the Xitsonga customary law. Hence the importance of

developing the law to make consent a requirement for a subsequent customary

marriage. It was on this point of ascertaining the relevant customary law that the

13 Mayelane paras 36-38. 14 Mayelane para 61.


975

dissenting judgment arose. Zondo J was of the view that the respondent could not

discharge the onus of proving that marriage of any kind existed between her and the

deceased when he died.15 In his view, the requirements of section 3(1)(b) had not

been met, and so the marriage was invalid as it did not comply with the "customs and

usages that are traditionally observed among the Vatsonga which form part of their

culture". According to him it was therefore not necessary to develop Xitsonga

customary law as the majority did, because in terms of that law the husband intending

to enter into a second customary marriage must inform the first wife and she must

consent to it.16 Jafta J also dissented on the grounds that it was inappropriate for the

Constitutional Court to be the court of first and last instance on the matter of whether

the consent of an existing wife in a customary marriage is required, where the matter

had not even been raised in the court a quo. He concluded that the development of

Xitsonga customary law in the main judgment was inappropriate, because it had not

been canvassed by the parties and there were no exceptional circumstances

warranting a departure from the precedent laid down in Lane and Fey v Dabelstein17

and Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd.18 In both of

these cases the Constitutional Court refrained from the development of common law

rules, which restraint, by reason of parity, Jafta claimed, should also apply to

customary law.19 The dissenting judgments in Mayelane were convinced that the same

outcome would have been reached without the development of Xitsonga customary

law. The majority judgment in this case decided to develop the customary law of the

Vatsonga with wider implications for the future of polygynous marriages in the

community and, by parity of reasoning, the country as a whole. Their approach brings

into sharp focus the extent of the reach of the transformative agenda of creating a

new order. In this instance the court shifted from the application of the Recognition

Act to the development of Xitsonga customary law. The Constitutional Court is obliged

to develop customary law in terms of section 39(2) of the Constitution, which provides

that:

15 Per Zondo J in Mayelane para 108. 16 Bekker and Rautenbach "Nature and Sphere of Application" 17-23. 17 Lane and Fey v Dabelstei 2001 2 SA 1187 (CC). 18 Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 1 SA 256 (CC). 19 Per Jafta in Mayelane para 150.


976

... when interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.20

This section requires proper understanding of the connection that exists between the

interpretation of legislation and the development of customary law. In Mayelane the

Court employed both customary law and the applicable legislation in determining the

role of consent of the first wife to the validity of the subsequent marriage of her

husband to another woman. The outcome of this approach relied on by the Court was

indicative of legislation that was trailing behind the living law, and yet the living law

was developed. This is a classic example of a change in law devoid of any adequate

engagement with the social norms of the community.

4 Analysis

4.1 Law, social change and living customary law

Several debates have been going on regarding the relationship between law and social

change.21 Social change refers to reforms, changes or transformation within a society

that has a specific impact on the lives of the people and their institutions.22 Often

times, the changing beliefs in social, political or even economic spheres in society have

laid the basis for reforms in law, and in other instances the law takes the lead in laying

the firm basis for changed morality. In practice, the interdependence between the two

processes cannot be overlooked or underrated. One of the critical points to note is

that usually the way a society functions does not rely on state rule. In other words,

there are norms that influence and shape people's lives, social contracts that inform

their sense of obligation towards one another and the proper sanctions for breaching

these standards of behaviour, and they do not necessarily depend on state authority

for their existence.23 So law must be looked at not in isolation or separate from society

but must take into account the manner in which people live. Sally Falk Moore24

suggests that law as a semi-autonomous field should be determined not in terms of

20 Section 39(2) of Constitution. Emphasis added. 21 Kok 2010 SALJ 66. 22 Kok Socio-legal Analysis 34-110. 23 Griffith 24 1986 1-55. 24 Falk Moore Law as Process 7-8.


977

territorial boundaries but rather by its measure of influence and whether it can

generate rules, customs and symbols that are sacrosanct to the people living within

that field, whilst it can influence and also be influenced by rules and decisions coming

from other sources. In my view, the suggestion of Falk Moore establishes that custom-

based rules that are meaningful to the people are largely influenced by their economic

as well as their social conditions.

Vander Zanden on his part defines social change as the "fundamental alterations in

the patterns of cultural structures and patterns of behaviour over time".25 This implies

that it takes time to develop custom-based norms because change occurs only over a

period of time. This is the kind of approach that the majority judgment in Bhe rejected.

Langa DCJ was of the view that the majority of South Africans have waited for so long

for justice, equality and freedom that any further delay in bringing justice to the people

is inappropriate. He said that:

.. the problem with development by the courts on a case by case basis is that changes will be very slow; uncertainties regarding the real rules of customary law will be prolonged...26

In this instance, the majority judgment made an immediate and significant change to

the customary rule of male primogeniture. This decision was considered by many,

including traditional leaders, to be judicial encroachment on customary practices.27

When such views are expressed, this may indicate the ineffectiveness of judge-made

rules or legislation on the lives of majority. Many have argued that most societal ills

cannot be properly addressed by law because law has no role to play in effecting social

change; rather, society changes and then law adapts to those changes.28 The notion

of living customary law is predicated on this kind of premise rather than on the codified

version that has been previously adopted by courts.

The first substantive case that dealt with the notion of "living law" was the

Constitutional Court case of Alexkor v Richtersveld Community,29 which dealt with

25 Vander Zanden Social Experience 125. 26 Bhe v Magistrate, Khayelitsha 2005 1 SA 580 (CC) para 112. 27 Himoga 2005 Acta Juridica 82. 28 Kok 2010 SALJ 65. 29 Alexkor Ltd v Richtersveld Community 2004 5 SA 460 (CC).


978

customary land rights. The broad principles enunciated in the case were that in the

first place customary law is an independent source of law that must not be interpreted

through the common law lens. Secondly, customary law is recognised to the extent

that it is consistent with the Constitution and any applicable legislation. The third

principle recognised customary law as the "living" law. The Court succinctly stated in

Alexkor and reaffirmed in Bhe that:

… it is important to note that indigenous law is not a fixed body of formally classified and easily ascertainable rules. By its very nature it evolves as the people who live by it its norms change their patterns of life … In applying indigenous law, it is important to bear in mind that, unlike common law, indigenous law is not written. It is a system of law that was known to the community, practiced and passed on from generation to generation. It is a system of law that its own values and norms. Throughout history, it has evolved and developed to meet the changing needs of the community. And it will continue to evolve within the context of its values and norms consistently with the Constitution.30

The Court acknowledged the nature of customary law, including its fluidity and the

difficulties involved in ascertaining its content. It was also acknowledged that the lives

of the people who live according to its norms are critical to its evolution as a source

of law, because of the constant changing patterns of their lives. This was an

acknowledgement of the importance of social norms and the influence of such values

on the living law of the people. It was also found necessary at this point to

acknowledge the limits of state law, including legislation, in addressing issues of

customary law. Clearly, it is not that law does not drive social change, but one also

has to affirm that there are greater influences in other social fields at play, such as

family, tribe, religious and social affiliations.31

Having regard to the South African context, living customary law is in competition with

state law, while being shaped by it. Living customary law has powerfully guided the

behaviour of a significant portion of the country's population for a long time, and

therefore should then be viewed as semi-autonomous, because the ties that bind its

observers together are stronger than the ties that bind them to external factors such

as state legislation.

30 Bhe v Magistrate, Khayelitsha 2005 1 SA 580 (CC) paras 48, 81; Alexkor Ltd v Richtersveld Community 2004 5 SA 460 (CC) paras 52-54.

31 Kok 2010 SALJ 59.


979

Sometimes attempts are made by government to re-regulate these "semi-autonomous

fields", which already have their own rules, practices and customs, by imposing new

legislation on them. Legislative interventions, however, often fail because of the pre-

existing social arrangements which are considered more important and stronger by

society than the new legislation.32 In South Africa, pieces of legislation such as the

Communal Land Rights Act33 and the Traditional Courts Bill34 have fallen into this

category of "imposed law".35 It can be argued in the South African context that the

desire to make right the wrong done by the historical legacy of apartheid has

contributed to these legislative interventions. For example, the Recognition Act

requires spouses to a customary marriage to register their marriages to ensure that

both spouses have equal rights in the marriage. Often the practical application of the

piece of legislation poses numerous challenges with unintended consequences. For

example, the Recognition Act requires that marriages be registered and yet it does

not invalidate unregistered marriages. Notwithstanding the lack of sanction for non-

registration, a woman without the certificate of registration risks her benefits, if any,

from the marriage.36

In the Mayelane case, both the applicant and the respondent had not registered their

marriages as required by the Recognition Act, and yet the respondent bore the greater

burden. Prima facie, both parties to the case seem to be placed on the same footing

by the Recognition Act in that they had not registered their marriages, and hence had

not complied with the requirements of the Act. The proof of the validity of the marriage

was not properly addressed by the Court. Instead the Court focused on the consent

of the existing wife and her constitutional right to equality within the marriage to the

detriment of the respondent. The validity of the second marriage was not determinable

according to the Court, even though the deceased had took some guests to his home

as some kind of introduction process, and not specifically for lobolo negotiation.37 The

32 Kok Socio-legal Analysis 66. 33 Communal Land Rights Act 11 of 2004. 34 Traditional Courts Bill, first introduced into Parliament in 2008. It was withdrawn in 2009 and was

re-introduced in 2011. Both the Communal Land Rights Act and the Traditional Courts Bill have been depicted as recreating apartheid structures.

35 Mnisi-Weeks "Traditional Courts Bill". 36 De Souza 2013 Acta Juridica 239-272. 37 Mayelane para 105.


980

Court considered this to be a mere gesture of friendship rather than a marriage, given

that the respondent was a woman with five children from a previous marriage. This

was the outcome of applying the Recognition Act in the specific context of polygynous

relationship without taking all the ramifications into account. A proper and careful

balance needs to be applied where state rules and custom-based rules co-exist.

In Mayelane, the Court reiterated some principles regarding the status of customary

law within the South African legal system. It affirmed that "…customary law feeds

into, nourishes, fuses with and becomes part of the amalgam of South African law".38

Against this background it was pertinent to properly establish the content of Xitsonga

customary law as a "matter of law", and the majority judgement sought to do so by

directing that further evidence be provided by a number of people with knowledge

regarding Xitsonga customary law. The fact that this evidence was contradictory did

not deter the Court, which instead viewed the contradictions as providing nuance and

perspectives often missed in such cases.

The majority then took an entirely fresh step in an attempt to develop Xitsonga

customary law by making consent a requirement for subsequent customary marriage.

In their view, where a husband decided to marry again without the consent of an

existing wife, such a move was considered by the Court as being incompatible with

the right of an existing wife to equality and dignity. The implication of the development

was that consent had now to be uniformly applied in all Xitsonga communities. The

two dissenting judgments of Zondo J and Jafta J (with Mogoeng CJ and Nkabinde J

concurring) were insightful in suggesting the manner in which customary law should

be developed. The view of Zondo was that there was sufficient evidence regarding the

issue of consent in Xitsonga customary law. According to him, there were two

objectives to be determined in this case. In the first instance, customary marriage

depends on

... whether the customs and usages traditionally observed among the Vatsonga and which form part of the culture of the Vatsonga have been followed, which requires that the consent of the first wife be obtained when a further customary marriage is

38 Mayelane para 23.


981

entered into. Secondly, whether such marriage was 'negotiated and entered into or celebrated' according to customary law.39

From this standpoint, what should have been considered was what was traditionally

observed by that particular community. It was clear that the customs and usages of

the Vatsonga required that the first wife be informed of the marriage and, as she

alleged, she was not informed. On this basis alone, the subsequent marriage to the

respondent should be invalid. Instead, the majority judgment failed to take into

account the evidence of the deceased's brother as being authentic evidence of the

customs and usages of the Vatsonga people and went ahead to develop the law. It

can be deduced from this approach of the majority that the depth of knowledge of the

family regarding their law was insufficient, and so the judge-made rule took

precedence over what the people who own the law said regarding their law.

The approach of the dissenting judgment in my view is preferable with regards to the

development of customary law as being unnecessary in this instance. In the first place,

customary marriages are not entered into secretly but are usually organised and

planned with a lot of family gatherings orchestrated to such an extent that the

community must know that a man is now connected to the woman's family by

marriage. So, based on the nature of customary marriages in the community, the first

respondent failed to show that any marriage took place between her and Mr Moyana,

the deceased. In the second instance, Xitsonga customary law is progressive already

in that it requires that the first wife be informed and a failure to inform her would

render such a marriage invalid. Thirdly, the Court failed to provide clarity regarding

the nature of the consent before developing the Xitsonga customary law. The various

scenarios at play should have been taken into account, particularly as this was a

polygynous marriage. For example, there was neither the floor (the threshold of

consent) nor the ceiling (should the consent be express or tacit)? Clearly, the decision

of the majority in Mayelane raised more questions than answers regarding consent,

and there is no doubt that customary law should be developed. It should, however,

be borne in mind that when the Constitution guaranteed the continued existence of

and survival of an "evolving" customary law, it intended that the manner in which

39 Mayelane para 103.


982

customary law should develop should be best left to future social progression and not

development at all costs.

The development of customary law by the Court is mandated by section 39(2) of the

Constitution. According to the provision:

When interpreting any legislation, and when developing the common law or customary law, every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.

In the context of Mayelane, the adjudication on the validity of a second customary

marriage required the Court to strike a balance between customary law and the

Recognition Act. The importance of such an approach is underscored by the nature of

living customary law, which allows for the negotiation of customs and practices by the

people to best suit their daily lives.

In Bhe, Ngcobo J referred to two contexts in which the need to develop customary

law might arise, as noted by the Constitutional Court in Carmichele.40 The first was

where customary law needs to be adapted to changed circumstances, as was the

situation in Shilubana, where the traditional authority of the Valoyi tribe gave effect

to the nature of living customary law by deciding that the daughter of their late hosi,

Fofoza, should now be named as hosi, a position that was denied her due to the

practice of male primogeniture at the time her father passed away. The second was

to bring it in line with the Bill of Rights. This was also evident in the Mabena case,41

where the court developed the customary rule that it is not only men who are able to

be involved in lobolo negotiations. This development of the practice was based on the

changing nature of composition of a family in South Africa, where women are now

also heads of households. The insistence that a mother who stood as the head of the

household could not partake in the lobolo negotiation because of her gender was held

to be inconsistent with the Constitution. In this circumstance, the living law played a

significant role in bringing that particular customary rule in line with the Constitution.

40 Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC) para 33; Bhe v Magistrate, Khayelitsha 2005 1 SA 580 (CC) para 212.

41 Mabena v Lestalo 1998 2 SA 1068 (T).


983

Critical principles to bear in mind when developing customary law, as enunciated by

Van der Westhuizen J in Shilubana and reiterated in Mayelane, were:

(a) consideration of the traditions of the community concerned; (b) the right of communities that observe systems of customary law to develop

their law; (c) the need for flexibility and development must be balanced against the value

of legal certainty, respect for vested rights and the protection of constitutional rights; and

(d) while development of customary law by courts is distinct from its development by a customary community, the courts when engaged with the adjudication of a customary-law matter, must remain mindful of their obligations under section 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights.42

The majority in Mayelane seemed to have understood this framework when it

considered customary law, the Recognition Act and the Xitsonga customary law and

the distinction that it made regarding the differences between development by the

court and development by the communities. It must be acknowledged that the

Recognition Act does not provide any relevant guidelines regarding the consent of the

first wife. Instead, it presented a lot of difficulties in its practical application to the

living conditions of many women in South Africa. The Recognition Act thus fails to

adequately cover critical areas regarding polygynous relationships, even though it

provides partial protection for the matrimonial regime of parties to polygynous

marriage. The Court, on its part, focused solely on its obligation in terms of section

39(2) when it said that:

This Court has accepted that the constitution's recognition of customary law as a legal system that lives side-by side with common law and legislation requires innovation in determining its "living" content, as opposed to the potentially stultified version contained in past legislation and court precedent. However, to date, this Court has not engaged in an incremental development of customary law as contemplated by section 39(2) of the Constitution. In Bhe, the Court invalidated the customary rule of succession regarding male primogeniture and, by a majority, replaced that rule with the statutory regime regarding intestate succession then applicable to non-adherents of customary law. Gumede involved confirmation proceedings relating to the invalidity of legislation. Shilubana gave recognition to and accepted the development of customary law already undertaken by traditional authorities.43

42 Shilubana v Nwamitwa 2009 2 SA 66 (CC) para 44-49; Mayelane para 45. 43 Mayelane para 43.


984

The above paragraph clearly refers to some of the approaches adopted by the

Constitutional Court in developing customary law. Although the majority judgment

was able to state all the principles that support the transformation agenda, in my view

their inability to contextualise the values relevant to the community in connection with

the specific legislation governing customary law fell short of the desired outcome. For

example, it recognised that the requirement of consent in customary marriages should

not be given a meaning that does not reflect its nature in customary law, and yet, in

its decision, consent in the Xitsonga community was generally applied to the extent

that it might have implications for other communities. This will have a greater impact

where customary practices are developed on a case by case basis.

4.2 Polygyny in South Africa and the Recognition of Customary Marriages

Act

The practice of polygyny in African culture generally is not new. Polygyny is a well-

entrenched practice of African people, and is recognised under customary law. African

regional human rights instruments such as the Protocol to the African Charter on

Human and Peoples' Rights on the Rights of Women in Africa also recognise that

polygyny is well and alive in many communities on the African continent, regardless

of social status.44 For example, the Southern Africa Development Community boasts

of two heads of government that practice polygyny.45 Polygyny as a custom is derived

from customary law, which is recognised by the Constitution as a system of law in

South Africa in terms of section 211(3) of the Constitution. It follows, therefore, that

polygyny is protected in our law to the extent that it is consistent with the Bill of Rights

and for obvious reasons, the Court found that the practice need not necessarily in and

of itself violate constitutional rights. But it has the potential to do so and regulation is

required to ensure the protection of the equality of status and dignity of women in

polygynous marriages.46 For example, it is common practice in South African society

that many men leave the wives whom they married under customary law in the rural

44 Article 6(c) of the Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa (2000).

45 Gender Links 2013 http://www.genderlinks.org.za/article/womens-rights-and-polygamy-2013-04-

08. 46 Mayelane paras 20-21; Andrews 2009 Utah L Rev 351-379.


985

villages and move to the cities in search of work. A lot of men in that situation then

enter into some form of marriage with another woman in the city, creating double

family situations. The majority of rural women are unaware that their husbands have

entered into a marriage with another woman.47 It is usually on the death of the

husband or when a dispute arises that these changes in family situations come to

light, and this does not usually bode well for the women involved. In the Mayelane

case, rather than offering protection, the Recognition Act complicated the situation.

The effect of this conflict of systems is that the court battles to balance the competing

rights in attempting to take into account the dignity and equal rights of all the women

involved.

The Recognition Act implicitly recognises polygyny and in terms of section 7(6)

provides that a husband who wishes to enter into a further customary marriage with

another woman must make an application to the court to approve a written contract

which will regulate the future matrimonial property system of his marriage, but it is

the husband who must make written application. Most times they fail to do so, to the

detriment of the women in the marriage. The failure in this case by Mr Moyana resulted

in the non-registration as well as non-recognition of his subsequent marriage to

Ngwenyama in terms of the law.48 The fact that the deceased, Moyana, spent the last

year of his life with the respondent did not ameliorate her position, and so she bore

the adverse effects of the law, even though the Recognition Act clearly stipulates that

a failure to register the marriages does not result in its invalidity. It is submitted that

the peculiar situation regarding double families in South Africa was not sufficiently

considered in the Mayelane case, and the court did not apply its mind to this trend

and consider the adverse effect its decision would have on many women like

Ngwenyama, whose rights to equality and dignity are not being taken in to account.

47 De Souza 2013 Acta Juridica 246. 48 Rautenbach and Du Plessiss 2012 McGill LJ 749, where the authors examine the literal approach

of the Court in dealing with African customary marriages.


986

4.3 Recognition of Customary Marriages Act 120 of 1998: some

reflections on its role in a changing society

The Recognition Act was enacted to bring a much needed remedy to the injustices

faced by the majority of South African women, and twenty years into our democracy

it has become clear that the nature of living customary law is being contradicted by

the Recognition Act. For example, the Court in Gumede49 declared invalid a provision

of the Recognition Act for being inconsistent with the constitutional rights of human

dignity and equality.

Although, the Recognition Act is a welcome relief for the majority of women,

particularly those who are in polygynous marriages, it is inadequate to deal with the

dynamics and flexibility of customary law. For example, many women have yet to

register their marriages, and failure to register the marriage results in failure to be in

possession of certificate of marriage. Clearly, such requirements are not found in living

customary law, and yet the Department of Home Affairs makes this mandatory

certificate a requirement for receiving the entitlements and benefits of the marriage.50

Often it is the "urban" wife that is in possession of the certificate and then lays claim

to the benefits of the marriage, to the detriment of the rural customary law wife who

had been married to the man for a long time. So, without the prima facie proof located

in the certificate of marriage, many women face numerous legal as well as social

disadvantages that adversely impact on the family.51

Furthermore, the Department of Home Affairs charged with the registration of these

marriages has to work with the Recognition Act; the original and the amended

version.52 Section 4(9) of the Recognition Act states that non-registration does not

result in invalidity, yet the Reform of Customary Law of Succession and Regulation of

Related Matters Act in section 5(1) provides further stringent processes required for

the registration of marriages, particularly where there is a dispute between the

49 Gumede v President of Republic of South Africa 2009 3 SA 152 (CC). 50 Mwabene and Kruuse 2013 Acta Juridica 292-317. 51 De Souza 2013 Acta Juridica 239. 52 The Recognition Act was amended in 2009. Also, the Reform of Customary Law of Succession and

Regulation of Related Matters Act 11 of 2009 came into operation in the same year.


987

parties.53 In addition, the Department of Home Affairs has to prevent the registration

of fraudulent marriages. It is mainly women who allegedly make these claims, and the

suspicions are deep-rooted, leading to lots of complex processes that ordinary folks

cannot deal with. Simply put, a customary marriage becomes meaningless and

unrecognised without the proof of marriage which is located in the certification of

registration, an approach that was adopted by the Provincial Court in Baadjies v

Matebula.54 Also, aspects of these social changes in family relations have culminated

in a position where the Recognition Act has become too specific in some areas and

too vague in others. For example, section 4(4)(a) makes mention of "any lobolo agreed

to", which has led to several cases on exactly at what point a customary marriage was

entered into, as noted in Nthenjani,55 or part payment was made as found in

Motsoatsoa v Roro,56 or the lobolo was paid in full, as held in Fanti v Boro.57

In my view, the Recognition Act has failed to alter social practice in such a manner as

to engender the protection of human rights. It purports to protect the rights of women

but then creates huge challenges that are contrary to the set objectives of the Act.

The Constitutional Court, on its part, has not provided guidance, since it condoned the

non-registration of the marriages in Mayelane. I argue further that there are limits to

what the law can achieve, particularly in the area of customary law, and in this

instance a number of laws, pieces of legislation or regulations that are subject to the

Constitution may be outdated in the context of the way in which people live their lives,

and are hence bound to lose their efficacy.58 This is indicative of the limited role that

law plays in causing positive societal change. It also suggests that legislation may be

out of sync with the realities of the society. This thought echoes what Cotterrell argued

when he said that "state-enforced sanctions appear to be useless in many areas of

social life and tend to disrupt rather than harmonise social relations".59 Clearly, in

relation to the "grand social transformation" envisaged by the Recognition Act, women

53 Meyer 2012 http://www.lawlibrary.co.za/2012/03/justicecollege_recognitionofcustomary

marriages.pdf 1-33. 54 Baadjies v Matebula 2002 3 SA 427 (W). 55 Nthanjeni v Road Accident Fund 2011 ZAFHC 196. 56 Motsoatsoa v Roro 2011 2 All SA 324 (GSJ). 57 Fanti v Boro 2008 5 SA 405 (C). 58 Claassens and Smythe 2013 Acta Juridica 4. 59 Cotterrell Sociology of Law 52.


988

have not benefitted much, and are instead confronted with huge complications arising

from the its application.

5 Conclusion

The purpose of the Recognition Act is to remedy the injustices of the past in relation

to customary marriages, but it is evident that there is a huge disparity between the

Recognition Act as a piece of legislation and how it is implemented for the benefit of

the majority of the people. Hence, the value of the Recognition Act as a tool for societal

transformation is questionable. At the heart of the Mayelane case is the issue of how

society should internalise the legal framework that promises equal rights and translate

it into a human rights culture. Thus far, the approach of the Constitutional Court

towards its obligation to develop customary law indicates a lack of proper

understanding of when it should or should not intervene. It is now twenty years into

our constitutional democracy, and hence there is a need to recognise the value implicit

in the transformational agenda of our law and society. To this end, it is pertinent to

recognise that there are limits to the law, particularly in the context of customary law,

where there are different variations of the same rule. Evidently, the Court still needs

to balance competing interests relating to its obligations and the possible impact of its

decisions, particularly in connection with the Recognition Act. Currently, it has utilised

two known mechanisms in relation to the development of customary law rules, which

are striking down impugned legislation and incremental development. In Mayelane it

embarked on the incremental development of a law and practice that are already part

of the lives of the people. The requirement of consent is now the law among the

Xitsonga, and how this will be internalised by the community remains to be seen.

Usually, rules that people consider an imposition are largely ignored. In my view, the

Constitutional Court must begin to decipher African law and justice, and they can do

so by taking into account section 211(2) through referring matters back to the

communities prior to attempting to develop living customary law.


989

BIBLIOGRAPHY

Literature

Andrews 2009 Utah L Rev

Andrews PE "Who's Afraid of Polygamy? Exploring the Boundaries of Family,

Equality and Custom in South Africa" 2009 Utah L Rev 351-379

Bakker and Heaton 2012 TSAR

Bakker P and Heaton J "The Co-Existence of Customary and Civil Marriages

under the Black Administration Act 38 of 1927 and the Recognition of

Customary Marriages Act 120 of 1998" 2012 TSAR 586-593

Bekker and Rautenbach "Nature and Sphere of Application"

Bekker JC and Rautenbach C "Nature and Sphere of Application of African

Customary Law in South Africa" in Rautenbach C, Bekker JC and Goolam NMI

(eds) Introduction to Legal Pluralism in South Africa 3rd ed (LexisNexis Durban

2010) 15-41

Bosch and Himonga 2000 SALJ

Bosch C and Himonga C "Application of African Customary Law under the

Constitution: Problems Solved or Just Beginning?" 2000 SALJ 306-341

Claassens and Smythe 2013 Acta Juridica

Claassens A and Smythe D "Marriage, Land and Custom: What's Law Got to Do

With It?" 2013 Acta Juridica 1-27

Cotterrell Sociology of Law

Cotterrell RThe Sociology of Law: An Introduction (Oxford University Press

London 1992)

De Souza 2013 Acta Juridica

De Souza M "When Non-Registration Becomes Non-Recognition: Examining the

Law and Practice of Customary Marriage Registration in South Africa" 2013 Acta

Juridica 239-272


990

Dlamini 1999 Obiter

Dlamini CRM "The Ultimate Recognition of the Customary Marriages in South

Africa" 1999 Obiter 14-40

Falk Moore Law as Process

Falk Moore S Law as Process: An Anthropological Approach (Routledge London

1978)

Griffiths 1986 Journal of Legal Pluralism

Griffiths J “What is Legal Pluralism” 1986 Journal of Legal Pluralism 24 1-55

Himonga 2005 Acta Juridica

Himonga C "The Advancement of Women's Rights in the First Decade of

Democracy in South Africa: The Reform of Customary Law" 2005 Acta Juridica

82-107

Himonga and Bosch 2000 SALJ

Himonga C and Bosch C "The Application of African Customary Law under the

Constitution of South Africa: Problems Solved or Just the Beginning?" 2000

SALJ 306-341

Kok Socio-legal Analysis

Kok JA A Socio-legal Analysis of the Promotion of Equality and Prevention of

Unfair Discrimination Act 4 of 2000 (LLD-dissertation University of Pretoria

2007)

Kok 2010 SALJ

Kok JA "Is Law Able to Transform Society?" 2010 SALJ 59-83

Mnisi-Weeks "Traditional Courts Bill"

Mnisi-Weeks S "Traditional Courts Bill: Reconciling the Irreconcilable?" Human

Sciences Research Council Seminar (8 May 2012 Cape Town)


991

Mqeke 1999 Obiter

Mqeke RB "The 'Rainbow Jurisprudence' and the Institution of Marriage with

Emphasis on the Recognition of Customary Marriages Act 120 of 1998" 1999

Obiter 52-68

Mwabene and Kruuse 2013 Acta Juridica

Mwabene L and Kruuse H "Form Over Function? The Practical Application of

the Recognition of Customary Marriages Act in South Africa" 2013 Acta Juridica

292-317

Rautenbach and Du Plessiss 2012 McGill LJ

Rautenbach C and Du Plessiss W "African Customary Marriages in South Africa

and the Intricacies of a Mixed Legal System (In)Novatio or Confusio?" 2012

McGill LJ 749-780

Vander Zanden Social Experience

Vander Zanden JW The Social Experience: An Introduction to Sociology

(McGraw-Hill New York 1990)

Case law

Alexkor Ltd v Richtersveld Community 2004 5 SA 460 (CC)

Baadjies v Matebula 2002 3 SA 427 (W)

Bhe v Magistrate, Khayelitsha 2005 1 SA 580 (CC)

Carmichele v Minister of Safety and Security 2001 4 SA 938 (CC)

Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2012 1 SA 256 (CC)

Fanti v Boro 2008 5 SA 405 (C)

Gumede v President of Republic of South Africa 2009 3 SA 152 (CC)

Lane and Fey v Dabelstein 2001 2 SA 1187 (CC)

Mabena v Lestalo 1998 2 SA 1068 (T)

Mayelane v Ngwenyama 2013 4 SA 415 (CC)

Motsoatsoa v Roro 2011 2 All SA 324 (GSJ)

Nthanjeni v Road Accident Fund 2011 ZAFSHC 196

Shilubana v Nwamitwa 2009 2 SA 66 (CC)


992

Legislation

Communal Land Rights Act 11 of 2004

Constitution of the Republic of South Africa, 1996

Recognition of Customary Marriages Act 120 of 1998

Reform of Customary Law of Succession and Regulation of Related Matters Act 11 of

2009

Traditional Courts Bill

International instruments

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women

in Africa (2000)

Internet sources

Gender Links 2013 http://www.genderlinks.org.za/article/womens-rights-and-

polygamy-2013-04-08

Gender Links 2013 Policy Brief: Woman's Rights and Polygamy

http://www.genderlinks.org.za/article/womens-rights-and-polygamy-2013-04-

08 accessed 22 July 2015

Meyer 2012 http://www.lawlibrary.co.za/2012/03/justicecollege_recognitionof

customarymarriages.pdf

Meyer MM 2012 Recognition of Customary Marriages

http://www.lawlibrary.co.za/2012/03/justicecollege_recognitionofcustomarym

arriages.pdf accessed 23 July 2015

LIST OF ABBREVIATIONS

McGill LJ McGill Law Journal

SALJ South African Law Journal

TSAR Tydskrif vir die Suid-Afrikaanse Reg

Utah L Rev Utah Law Review

http://www.lawlibrary.co.za/2012/03/justicecollege_recognitionof

legislation as a critical tool in addressing social change · pdf file ·...

Documents